194 P. 26 | Cal. | 1920
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *428 Plaintiff and defendant, who are the owners of adjoining tracts of land in Shasta County, seek in this action an adjudication of their respective rights in and to the waters of a creek, known as the North Fork of Richardson Creek, to which defendant's land is riparian. In 1885, plaintiff's predecessor in interest made entry of plaintiff's land, which was then part of the public lands of the United *429 States, in the United States land office, obtaining a patent in 1895. Prior to making entry of his land, the predecessor of plaintiff constructed a ditch which had at that time, and still has, a carrying capacity of forty-eight miner's inches, by which he diverted water from the North Fork of Richardson Creek across the land of defendant, which at that time was part of the public domain, to plaintiff's land, where it was used for irrigation, stock, and domestic purposes. At the time defendant made entry of his land, which was in 1886, the ditch above mentioned had been constructed and plaintiff's predecessor had about six acres of his land cleared, cultivated, and under irrigation from said ditch. Just when additional acres of plaintiff's land were cultivated does not clearly appear from the testimony, but, some time between the years 1886 and 1910, the acreage under irrigation was increased to at least fifteen. In 1892, defendant constructed a ditch with a capacity of seventy-five miner's inches, the intake of which was higher up the creek than that of plaintiff. The evidence does not show that either party objected, prior to 1916, to the amount of water diverted by the other; some witnesses testified that there was at all times sufficient water in the creek for the uses of both. From 1892 both plaintiff and defendant diverted water through their respective ditches and used it for irrigation and stock purposes until the year 1916, when defendant dammed up the creek so as to prevent all water from flowing into plaintiff's ditch.
Plaintiff in his complaint asked for an injunction restraining defendant from interfering with his use of the water and for a judgment for damages alleged to have resulted to his crops from defendant's interference with the flow of water in his ditch. The trial court decreed that plaintiff was entitled to forty-eight miner's inches of the first flow of the waters of the North Fork of Richardson Creek; that, subject to said right of plaintiff, defendant was entitled to the remainder thereof, amounting to fifty-two miner's inches, and gave judgment for damages against defendant for the sum of $613.30. Upon his appeal from the judgment, defendant does not question the right of plaintiff to divert water across defendant's land by means of his ditch; the amount of water which plaintiff is entitled to divert is the point of controversy. *430
[1] Defendant's claims are based upon his ownership of riparian lands. The rights of defendant to the waters to which his land is riparian are subject to those rights to divert and use the waters which had vested and accrued, as the result of diversion, prior to the vesting of defendant's rights as a riparian owner under his grant from the United States government. (Osgood v. El Dorado Water etc. Co.,
[2] The granting of a patent to a settler on public lands is held to relate back to the filing of the entry of the land in the United States land office and to confer the rights of a riparian owner upon the grantee of the patent from the date of his entry. (Sturr v. Beck,
[5] The quantity of water to which a person becomes entitled by such diversion is not determined by the capacity of the ditch diverting the water; the extent of the right gained by the diversion is limited to the amount of water applied to a beneficial use, which has been interpreted to mean the amount actually used and reasonably necessary for a useful purpose to which the water has been applied. (McKinney v. Smith,
[7] Defendant contends that the period of time within which the right to use an increased amount of water, to meet accruing needs, must be exercised is limited to a period of five years from the date of the original diversion, basing the contention upon the fact that, by virtue of section 1411 of the Civil Code, as interpreted in the California cases, a right acquired by appropriation ceases upon a failure to make a beneficial use of the appropriation for a period of five years. (Smith v. Hawkins,
[8] It follows that the quantity of water to which plaintiff is entitled by right of diversion is the quantity actually used for beneficial purposes at the time of the original diversion, and which was reasonably necessary for such purposes, plus any additional quantity intended to be applied to future needs at the time of the original diversion, which has been actually put to use within a reasonable time, measured by all the circumstances of the case, after the original diversion, and which was reasonably necessary therefor.
[9] It, perhaps, should be said that this rule, whereby the right of an appropriator to take at a later date water in excess of that which he diverted and put to beneficial use in the first instance, may relate back to the inception of his work although he has not complied with the code requirements, does not hold as against an intervening appropriator who does comply with the code requirements. As against such an intervening appropriator, the first has, under section
[10] In addition to any rights thus acquired by diversion before defendant's entry, plaintiff, as previously stated, might, of course, after defendant's entry, increase the quantity of water to which he was entitled as against defendant, who was a riparian owner, by prescription, that is, by diverting and using a certain quantity of water "continuously, uninterruptedly, and adversely for a period of at least five years." (Smith v. Hawkins,
[11] Viewed in the light of these principles, the judgment of the trial court must be reversed because of the error, pervasive and pervasive of both trial and judgment, in assuming that the capacity of plaintiff's ditch at the time of the original diversion, prior to defendant's entry, was the measure of his rights, irrespective of beneficial use.
That this was the theory of counsel for plaintiff at the trial is indicated by their opening statement: "But we shall claim that . . . no question arises in this case as to the beneficial use of water. For instance: That the government of the United States said to George Haight: 'You have constructed this ditch. You own that land. You took this ditch on government land and you have a right to all the water that that ditch will carry, whether you can put it to a beneficial use or not.' " The following colloquy occurred at the trial: The court: "Is the question of necessary use involved in this case?" Attorney for plaintiff: "Well, the other side contends that is. We contend that it is not." *435 Doubtless, because of the erroneous assumption that the capacity of the ditch, since it diverted water on government land, determined plaintiff's rights, the testimony offered on behalf of plaintiff merely tended to prove that his ditch had been running full for about twenty or thirty years last past and that plaintiff's predecessor in interest and plaintiff had irrigated his land with water from the ditch during all of that time.
[12] Defendant's rights as a riparian owner were proved when he showed his entry upon land riparian to the stream. At the time when defendant became possessed of riparian rights, when he made entry in 1886, plaintiff was, as the record shows, using only enough water for stock and domestic purposes and for the irrigation of six acres of land, and defendant's riparian rights were subject to plaintiff's right to take such an amount of water. If plaintiff had, at the time of his original diversion, planned to take additional water to irrigate newly cultivated land, had planned his diversion works for that purpose, had not completed the works or the preparation of his land at the time of defendant's entry and continued thereafter with due diligence to prepare such land and use the additional water, the burden was upon him to prove these facts. (Gardner v. Wright,
It is obvious that plaintiff did not show a right to more than enough water to irrigate six acres. The finding that, for more than thirty-five years plaintiff has diverted andused forty-eight miner's inches, which is the capacity of the ditch and far more than is necessary for the irrigation of six acres, is wholly unsupported by the evidence, and the judgment awarding plaintiff forty-eight miner's inches cannot be sustained.
[15] It is important, in the event of a new trial, that the parties be advised that the mere fact that the ditch was full or carried a certain quantity of water throughout the season is of no consequence, unless all of the water so carried was put to a beneficial use all of the time. That is to say, the amount of water beneficially used during the entire season is determinative of the quantity to which plaintiff is entitled. If, for example, the plaintiff kept the ditch running full for four months continuously, but used the water only two months in the aggregate, he would gain a right to receive only one-half of the water flowing in the ditch, or to all of it for one-half of the time.
The judgment of the court was also erroneous in proceeding upon the theory that the flow of the North Fork is one hundred miner's inches during the irrigating season, whereas, according to the undisputed testimony, the flow is only eighty miner's inches.
The amount of damages to be awarded plaintiff will have to be ascertained after the number of acres which plaintiff is entitled to have irrigated with the water from his ditch is *437 definitely determined in accordance with the principles above set forth.
The judgment is reversed.
Shaw, J., Olney, J., Angellotti, C. J., Lawlor, J., Wilbur, J., and Sloane, J., concurred.